Phone call surveillance policy no mystery, congressman says

A Georgia congressman’s recent attempt to clarify the federal government’s powers in terms of electronic surveillance made us curious.

U.S. Rep. Lynn Westmoreland, a Republican from Coweta County, said Edward Snowden is flat-out wrong that contractors like him can eavesdrop on the phone calls of Americans whenever they want. Snowden is the former government contractor who caused an international stir by leaking National Security Agency documents about its surveillance program.

"That is a lie," Westmoreland said.

The congressman, who is a member of the House Committee on Intelligence, explained.

"It is against the law for the NSA to record or monitor Americans’ phone calls without getting a specific FISA warrant to do so, based on compelling evidence of a connection to terrorism. Plain and simple," Westmoreland wrote in an op-ed that we spotted on the Peach Pundit website.

We wondered if the congressman was accurate when he wrote that the NSA cannot legally record or monitor Americans’ telephone calls without a specific FISA warrant.

In early June, news accounts in The Guardian and The Washington Post reported that the federal government, as part as what’s called the "2015 program," had hundreds of millions of telephone records as part of its terrorism surveillance efforts. The news organizations also reported on another program used by the NSA and FBI that scours the nation's main Internet companies, extracting audio, video, photographs, emails, documents and connection logs to help analysts track a person's movements and contacts. The reports were based on leaks from Snowden, who wanted to expose the depths of the surveillance.

FISA, which stands for the Foreign Intelligence Surveillance Act, was created in 1978 to establish federal regulations for counter intelligence. A secret court of Washington, D.C.-area federal district court judges was created to hear government requests for search warrants. Congress passed, and President Barack Obama signed, a five-year extension of the FISA Amendments Act in December.

The amendments allow surveillance of non-U.S. citizens overseas who the government believes may be involved in terrorist activities. Section 702 of the act, first approved in 2008, allows such intelligence without a court order for each individual target.

A February 2012 letter by Attorney General Eric Holder and Director of National Intelligence James Clapper seeking the act’s reauthorization also supports Westmoreland’s argument.

"(T)he Attorney General and the Director of National Intelligence may authorize annually, with the approval of the Foreign Intelligence Surveillance Court (FISC), intelligence collection targeting categories of non-U.S. persons abroad, without the need for a court order for each individual target," the officials wrote.

The government is required to submit updates about the program’s progress twice a year to Congress.

Section 703 sets rules for the surveillance of U.S. citizens. The guidelines require a 90-day court order and additional 90-day renewals, if necessary.

Section 704 of the act focuses on U.S. citizens outside the country. It, too, requires a court order to conduct surveillance.

Emory University law school professor Charles Shanor said Westmoreland has a point. Shanor said a FISA or a probable cause warrant is necessary for surveillance.

"You have to have authorization, even to get the log of calls made," said Shanor, who clerked for a federal court judge and worked for three years as the general counsel at the U.S. Equal Employment Opportunity Commission.

Westmoreland’s spokeswoman Leslie Shedd sent us several documents to back up her boss’s claim. It included testimony from a June 18 House committee hearing that he attended. Several House members asked intelligence officials if they can listen to phone calls without a warrant. Here is one exchange between Rep. Mike Rogers, R-Mich., chairman of the House Intelligence Committee, and U.S. Army Gen. Keith B. Alexander, the NSA’s director.

ROGERS: "Is -- is the NSA have the ability to listen to Americans' phone calls or read their emails under these two programs?"

ALEXANDER: "No, we do not have that authority."

ROGERS: "Does the technology exist at the NSA to flip a switch by some analyst to listen to Americans' phone calls or read their emails?"

ALEXANDER: "No."

The president addressed the issue during an interview with Charlie Rose on his PBS show.

"(I)f you’re a U.S. person, then NSA is not listening to your phone calls and it’s not targeting your emails unless it’s getting an individualized court order. That’s the existing rule," Obama said.

Is it possible that the federal government has conducted surveillance on U.S. citizens overseas? Intelligence officials told Congress at the June 18 hearing that they do not include U.S. citizens.

In order to do surveillance under Section 704, Deputy U.S. Attorney General James Cole said at the June hearing, it would require "identifying that person; identifying the probable cause to believe that that person is involved in either terrorism or foreign intelligence activities; and indicating that we have then the request to the court to allow us to intercept their communications because we've made the showing that they're involved in terrorist or foreign intelligence activities."

Again, Westmoreland said it is illegal for intelligence officers to listen to the phone calls of Americans without a FISA warrant. Federal documents, congressional testimony and comments from the president support his claim.

The rules are different if you’re not a U.S. citizen.

Since Westmoreland specifically referenced U.S. citizens, we rate his claim True.

Telephone interview with Emory University law school professor Charles Shanor, June 24, 2013.

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